February 14, 2008
The Ontario Human Rights Commission (the “Commission”) makes this submission in response to the College’s draft policies: Establishing a Physician-Patient Relationship, and Ending the Physician-Patient Relationship. The Commission commends the College for taking steps to address concerns that have arisen with regard to a number of physician practices.
The Commission would like to acknowledge the difficulties faced by individual physicians in balancing their public practice with their private lives, at a time when the entire healthcare system is under significant pressure.
As the College is aware, section 1 of Ontario’s Human Rights Code (the “Code”) states that:
“Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.” 
These and the other protections set out in the Code are grounded in broader human rights principles, that seek to create a climate in which the dignity and worth of every individual is recognized, and all persons may fully participate in society.
A failure to respect the dignity of a person and provide him or her with equal access to health services relating to any of the listed grounds is a violation of the Code and can be the subject of a human rights complaint. This includes any decision as to whether to establish a physician-patient relationship, and any interactions, treatment care decisions, or any decisions to provide information or referrals.
In the past, the Commission has received complaints and heard community concerns about a number of screening and treatment practices, such as the use of questionnaires and interviews, denial of all or of particular services based on personal beliefs about individual patients or groups of patients, and decisions to cease to act as treating physician. Many of the situations described relate to prohibited grounds under the Code and appear to reveal discriminatory practices. We therefore welcome the opportunity to comment on the College’s draft policies.
The Commission agrees with the College that organizations must develop strong policies that reference the Code. Such policies should raise awareness of Code obligations, increase compliance, and address all discrimination and harassment within their organizations or sectors. We are therefore pleased to see that the draft policies mention the Code and list the prohibited grounds of discrimination in service provision. We suggest that, given the significant and ongoing discrimination faced by transgendered people and those perceived to be gender variant, the College add clarification that the Code protections relating to sex also include gender identity and expression.
With regard to the draft policy on Ending the Physician-Patient Relationship, we applaud the College’s reference to the Code at lines 46 and 109, and the listing of the grounds in the footnote to the former section, and do not have further substantive comment. However, the Commission has some significant concerns about the draft policy Establishing a Physician-Patient Relationship. We would therefore like to take this opportunity to detail the potentially discriminatory implications of some elements of the draft policy, and make recommendations for amendments that would address these concerns.
Comments regarding the draft policy: Establishing a Physician-patient Relationship
The Commission is pleased with the foregrounding in the draft policy of references to the Code grounds and to the concept of discrimination, These are important elements of the policy, which can be better integrated throughout the document in order to prevent situations in which physicians may, knowingly or unknowingly, be acting contrary to Ontario’s Human Rights Code.
As you have indicated at lines 35-41 in the draft policy, a failure to provide equal access to health services is a violation of the Code and can be the subject of a human rights complaint. This includes any decision as to whether to establish a physician-patient relationship, and any interactions, treatment care decisions, or any decisions to provide information or referrals.
The Commission’s concerns focus on the draft policy’s handling of discretionary decisions made by doctors in accepting patients, and in provision of care. As currently stands, the draft policy may in fact lead to confusion and to human rights complaints, in that physicians may see it as condoning practices that the Commission views as discriminatory. Particular issues of concern include:
- When a practice is “open” or “closed”
- Admitting patients to a “closed” practice
- The concepts of “patient selection”, and “scope,” “balance,” or “focus” of a practice
- Consideration of time constraints in deciding to accept a patient
- Clarification relating to “clinical competence” to provide care
- Refusal to provide services in general, or to provide particular information or health care based on religious or moral grounds
The use of discretion is problematic in that options that sanction the use of discretion leave the door open for discriminatory approaches. The only way to avoid these entirely would be through a first-come, first-served approach, as you suggest at lines 66-67. If the College were to clearly direct physicians to use this approach, many discriminatory practices may be eliminated.
The following comments provide more detail about how discretionary practices can be discriminatory, and discuss in more detail how such discretion, if not entirely eliminated by the College, can be more appropriately defined in order that the College may avoid condoning discriminatory practices.
“Open” or “closed” practices
If a family physician has an open practice (as defined at lines 21-27), then this practice should be open to all. However, the draft policy allows for significant “discretion” based on “scope” and “balance of the practice,” and the time available to the physician to provide care. It is essential that the final policy produced by the College of Physicians and Surgeons of Ontario provides clear guidance to limit this discretion in order to prevent unlawful discrimination.
The finalized policy should clearly state that, if the physician does not have time to provide care to any one patient, then the practice should, in fact, be a “closed” practice – that is, not accepting new patients. Otherwise, allowing the physician to call the practice open, while screening individual prospective patients with consideration to the time required to treat them, will in all likelihood lead to discrimination based upon the nature of the disability and complexity of care required. For example:
A woman and her adult son, who is dependent on her due to his disability, go in for an interview as required by a physician before they can become new patients. The woman asks the physician if she does house calls. The physician states that she does not, and refuses to accept the man as a patient, even when the woman states that her son has access to alternate home care when required, and that she or another care giver can bring him in for his appointments. When the mother becomes angry at the physician’s ongoing refusal, the physician decides that her reaction is excessive, and also refuses to accept her as a patient.
As this example shows, the caregivers of children or adults with disabilities who are screened out due to time considerations may also experience a discriminatory impact, by association. In addition, patients may reasonably understand that being told to come in to meet a doctor seems to indicate the beginning of a care relationship. Being denied based on an interview may also open up concerns about discrimination based on visible indicators of other Code grounds, such as race, religion, colour, and so on. Finally, this example illustrates that persons can be expected to become upset when they feel they have been discriminated against, and their reaction must be understood in this context.
It should be noted that, in addition to the discriminatory nature of screening patients on the basis of actual or perceived time demands, such as the elderly, it is very hard to predict the time a patient will require over the course of his life. For example, a healthy, “low-demands” patient may become pregnant, be in an accident, or develop a debilitating condition. Trying to “forecast” the caseload is therefore not a helpful way to limit the time demands of a practice
The Commission agrees with the College that, as discussed in lines 66-68 of the draft policy, patients wishing to join an open practice should be accepted on a first come, first served basis. Should a patient with significant care needs join the practice, the doctor could thereafter manage the time demands of his or her practice by changing the status of the practice from “open” to “closed”. In short, the Commission recommends that any suggestion that a physician with an open practice can refuse to take on a new patient because he or she may take up too much time be removed from the policy.
Discretion to accept a new patient to a closed practice
The draft policy allows for the Physician’s discretion to accept new patients even when the practice is closed. This discretion should be clearly defined and delimited in order to prevent physicians from using the “closed practice” designation on an ongoing basis in order to gain greater, and possibly discriminatory, discretion in selecting patients.
For example, this discretion could be defined as being limited only to the admission of new patients who are:
- Immediate family members of the practice’s physician(s) or staff, or family members with whom they share a dependent or caregiving relationship
- Immediate family members of a current patient of the practice, with whom the patient shares a dependent or caregiving relationship
- in urgent care need and without access to an “open” practice
This kind of narrowing of the discretion to specific criteria is the type of clarification of the final policy that would provide better guidance for physicians, establish greater transparency in their discretionary decision-making, and prevent informal, word-of-mouth practices that have been linked to discrimination in other contexts (such as employment).
“Patient selection” and “scope,” “balance,” or “focus” of practice
In the draft policy, the terms “scope,” “balance” and “focus” of practice are closely related, and are all considerations in the “patient selection” process. The goal of having “balance” -- in terms of work-life balance -- is understandable from the point of view of the pressures on physicians in the current environment. However, in its discussion of these concepts, the draft policy does not provide a clear sense of what is, and is not, acceptable practice. It is essential that the College reconsider how it addresses these issues in the final policy.
The Commission finds the entire concept of “patient selection” very problematic, in that it is premised upon, and (in lines 29-31) defined in terms of, the concept of “choice.” This gives the false impression that a broad range of physician preference is acceptable.
The terms “scope” and “balance” are not defined in the draft policy, and insofar as they figure in to the “patient selection” process, allow for considerable and potentially discriminatory discretion and preference relating to Code grounds. It is not clear to what extent these terms overlap with, or are distinct from the concept of “focus” of a practice.
For example, considerations of “balance” detailed in the draft policy appear to allow the physician to refuse a potential patient based on an estimation of the time that would be involved in providing the care, which is, in turn, an obvious surrogate for the degree or nature of a patient's physical or mental disability.
In the Commission's view these terms all but invite the introduction of discriminatory or arbitrary factors into the patient selection process. The Commission's recommendation to the College is that "scope" and "balance" be wholly removed from the policy.
If a physician may have a “focus” within their family practice, such as providing care to an underserved community or based on an area of specialized knowledge, then the draft policy should provide that the nature of the “focus” and its rationale must be transparent, justifiable, and clearly communicated to potential patients. The distinction between a “focus” and a medical specialization should also be clarified, along with criteria by which the College may assess specialized knowledge as sufficient to justify a “focus”. That is, what kind of training, certification, or experience would the College look for in considering the legitimacy of the physician’s selective practices?
In this regard, the Human Rights Code (s. 14.(1)) allows for special programs to relieve hardship or to assist disadvantaged groups to achieve equal opportunity. A physician who defines the practice’s “focus” in such a way as to exclude persons relating to a Code ground, without being able to justify the focus according to identified group need or clearly established criteria relating to special knowledge, may be acting in violation the Code.
For example, a physician whose practice specializes in treating and assisting patients who have tested HIV positive, may well have a "focus" that would also constitute a special program under section 14(1) of the Code. Such a person is specializing in treating persons who are identified on the basis of a Code ground. This type of "focus" is acceptable.
On the other hand, a physician whose practice purports to focus on "wellness" and who will only take on persons who are currently in a healthy state, or who are high performing athletes, would not be providing a "special program". This type of focus again excludes persons such as those with mental and physical disabilities.
The policy should clearly state that where the focus of the practice does not itself attempt to ameliorate conditions of a group identified on the basis of a Code ground, it will not be an acceptable one for the purposes of patient selection.
“Clinical competence” to provide care
The Commission would not wish a physician to take responsibility to provide care where he or she is not clinically competent to do so. However, what constitutes clinical competence must be made clear in the draft policy. It is the Commission's position that, essentially, a person trained as a family physician should be able to provide basic medical care for any patient. The family physician may not have clinical competence to meet all of the care needs of patients with complex or multiple conditions, but, as the first line of service must provide basic care and referrals to one or more specialists. Unless a physician has specific restrictions on his or her licence imposed by the College precluding him or her from treating specific persons, we can see almost no basis for alleged "clinical competence" to be used as a basis for turning patients away.
The Commission has heard concerns that some physicians’ responses to health service requests from particular individuals, while using reference to “clinical competence,” actually stem from bias about the individual or unwillingness to take on what they see as a “difficult” or time-costly case based on the nature of the disability. For example:
A transgendered woman presents herself to a physician requesting a basic service regularly provided by that physician, but the physician declines, saying “I don’t do you people.” He cites a presumed need for psychiatric assessment, which the patient does not in fact require.
There must be an actual, demonstrable link between the health service request or care needs being presented to the physician, and any denial of service based on “clinical competence,” and this should take into account the ability of the physician to provide referrals to specialists where required. If a family physician can provide such referrals, then the ground of "clinical competence" should not apply in the policy as a basis for patient refusal.
A important consideration here is the test set out by the Supreme Court of Canada to be met by anyone wishing to justify a discriminatory rule, policy or procedure as bona fide. In Meiorin, the Court found that any such rule must be shown to be:
- adopted for a purpose or goal that is rationally connected to the function being performed,
- adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal, and
- reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
This sets a high standard, in which accommodation must be provided, and the purpose, motivation, and justification for the rule or exclusion are subject to a high level of scrutiny.
Refusal to provide services based on religious or moral grounds
The Commission has also heard concerns, and addressed complaints, relating to the refusal to provide services in general, or to provide particular health information or treatment, based on religious or moral grounds. The section of the draft policy entitled “Practice Limitations Based on the Physician’s Religious or Moral Beliefs” therefore raises a number of questions. The Commission has concerns about this section based on a number of complaints and inquiries indicating that that religious or moral beliefs of health care providers can have discriminatory impacts on Code rights relating to sex, gender identity, sexual orientation, marital status and disability, among others.
It is important to keep in mind that the protection of one right cannot be based on the total disregard of another. This section of the draft policy focuses on the right of the doctor at the expense of that of the patient, addressing the latter simply in terms of the right to choose to go elsewhere for services. This is not reflective of the principles and the interpretations of the Human Rights Code, and amounts to denial of service. While freedom of religion is to be interpreted broadly, so are rights to non-discrimination, and services normally offered to the public must be offered in a non-discriminatory manner.
While the expression of their religious beliefs is essential for religious officials in the performance of their duties, secular service providers cannot claim that the performance of their job functions is an expression of their deeply held religious beliefs. The Supreme Court of Canada recognized in the Trinity Western decision that providers of public services are expected to essentially "check their personal views at the door" when providing a their services. For example, in Hall v. Powers, a Catholic school board was required to allow a male student to attend the prom with his boyfriend because, although the board was entitled to hold beliefs against homosexuality, it was not permitted to act on these beliefs in a discriminatory manner. The few exceptions to this are specifically set out in the Human Rights Code, such as the ability of clergy to refuse to solemnize a marriage.
Allowing refusal of healthcare based on personally held religious beliefs would deny the equality rights of those requiring this essential service. A physician’s denial of services or refusal to provide a woman with information relating to contraception or abortion, for example, would be discriminatory based on sex, as only women can become pregnant. In this regard note that section 10(2) of the Code provides that: “The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”
The Code does provide for accommodation of religious belief. For example, where the physician in question is employed by an organization, the organization has a duty to accommodate his or her religious beliefs. This may take the form of ensuring that another physician is able to provide the service that the patient requires in a timely and dignified manner. However, the physician’s interest in accommodation needs to be weighed against the impact on the patient. The scope of the accommodation of the physician’s religious belief may need to be limited where it is not possible to provide accommodation without a discriminatory impact on the patient, such as delay or disruption of service, or the creation of a judgemental or otherwise poisoned environment for the patient.
In closing, as our society continues to age, and as medical advances allow people with multiple and complex disabilities to live longer and more productive lives, greater numbers of people may require complex medical care. They must not be denied care on this basis. In addition, in this increasingly diverse society, all Ontarians must make distinctions between their personal beliefs and opinions, religious or otherwise, and their obligation to act in a non-discriminatory manner. Health care is one of the most essential services to Ontarians, yet the public is often faced with situations in which there is limited access and little or no choice available to them. Physicians therefore have a particularly great responsibility to ensure that there is no place for discrimination in any aspect of their practice.
The Commission thanks the College for this opportunity to provide input into this very important policy development process. In keeping with the Commission’s commitment to public accountability and its duties in serving the people of Ontario, this Submission will be made public.
 It should be noted that the ground of “disability” also includes perceived disability, and “sex” includes gender expression and identity, pregnancy, and breastfeeding. For more information, see the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (revised 2000), Policy on Discrimination Because of Pregnancy and Breastfeeding (revised 2001); and Policy on Discrimination and Harassment because of Gender Identity (2000): all Commission policies are available online at www.ohrc.on.ca.
 See the Commission documents: Policy on Discrimination and Harassment because of Gender Identity (2000); and Toward a Commission Policy on Gender Identity (1999), both available online at www.ohrc.on.ca.
 Policy and Guidelines on Racism and Racism Discrimination (2005): Part II s. 4, “Systemic or Institutional Dimensions: Policies, Practices and Decision-Making Processes”; and also first page of “Appendix: Recruitment, Selection and Hiring - Barriers” where there is discussion regarding use of personal networks and word-of-mouth referrals. The Policy may be accessed on the Commission Web site at www.ohrc.on.ca.
 British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3.
 Courts have found that the right to freedom of religion includes the right to believe, the right to declare the belief openly and the right to manifest that belief by worship, practice and teaching without coercion or constraint, but is limited by fundamental rights and freedoms of others (R v. Big M). From a pragmatic approach, the freedom to hold beliefs is greater than the freedom to act on those beliefs when it negatively impacts the equality rights of others, especially in a service context (Trinity Western).